Philosophy

The search for a superior legal philosophy is complicated by the fact that even fairly discrete approaches to the law have theoretical varieties that are often, to some extant, inconsistent.  Some scholars have tended to restrict their analysis to two main schools of thought. These two schools have thought have been defined as traditionalism and legal realism.  Other scholars have proposed a more expansive theoretical framework the former dean of Yale Law School, for instance, has suggested that throughout this century in the United States, four approaches to law have vied for dominance among legal scholars.  For purposes of this essay, however, the discussion will be limited to five reasons why legal realism is superior to traditionalism as a legal philosophy.

    First, legal realism recognizes and accounts for the fact that all judges are fallible human beings.  The traditionalist assumption that judges are able to apply objective rules to a given set of facts dispassionately, thereby arriving at decisions that are both determinate and apolitical, is simply contrary to human nature.  This is not meant to question judicial integrity, or to suggest that justices such as Scalia do not try to reason in an objective manner, but to argue that no human mind reasons in a vacuum.  Judges, like all human beings, are the products of religious convictions, personal experiences, and biases both known and unknown.  Legal realism accounts for these elements of human fallibility whereas traditionalism tries to create a sort of judicial temperament that runs counter to human experience.  The first reason that legal realism is a superior legal philosophy, therefore, is because this school of thought accounts for human fallibility whereas traditionalism assumes that this fallibility can be transcended and overcome by individual judges.

    An additional feature of legal realism that is superior to traditionalism is its ability to account for social concerns and social welfare in ways that are simply beyond the scope of traditionalist philosophies.  Even a cursory examination of the case law demonstrates quite clearly that judges interpret the law differently this is precisely why there are higher courts of appeal and supreme courts.  If the law is meant to serve society, and to serve the greatest number of citizens as Bentham advocated, then traditionalism is a flawed legal philosophy.  It is flawed because it treats social concerns and social welfare as essentially irrelevant considerations in a legal system of purely autonomous legal rules and legal principles.  A legal philosophy that excludes social considerations from the decision-making calculus is not serving social interests.  The second reason that legal realism is superior is because it treats social concerns as relevant facts to consider.

    A third argument in favor of legal-realism is mostly of a socioeconomic nature more particularly, recognizing that laws are often created by and implemented by those with more economic resources than the common citizen, legal realism creates a more democratic type of judicial branch.  The rich and the powerful seem to more frequently avail themselves of the judicial branch than do individuals or businesses with less economic clout.  There is thus a great potential for the judicial process to be abused by the rich and the powerful if a traditionalist approach is followed.  This is because the rich and the powerful use lobbyists to influence legislators in turn, the strict letter of the law tends to reflect the best interests of the rich and the powerful rather than the best interests of society more generally.  A traditionalist approach would allow the rich and powerful to create laws legislatively and then have those same laws rubber-stamped by the judicial branch.  The third reason why legal realism is a superior legal philosophy is because this approach encourages judicial independence and maintains the integrity of the judiciary while placing society generally on a pedestal above narrower political and economic interests.

     Legal realism also allows judges to resolve legal disputes in a practical way without being unduly constrained by technicalities that may lead to gross injustices. It allows judges to view the competing interests at stake, to consider the implications of a decision on behalf of either competing party, and to employ judicial judgment in such a way as to maintain the legitimacy of the laws being invoked without allowing for unintended results or gross miscarriages of justice.  Traditionalism assumes that intent can be derived from the law, and this is clearly not always the case.  Legal realism can account for the practical reality that intent is elusive, and also provide judges with the intellectual mechanism for resolving complex types of disputes.  Thus, the fourth reason why legal realism is superior is because it allows judges to balance competing interests in such a way as to maintain the legitimacy of the law while simultaneously avoiding unjust results.

    Finally, the research demonstrates quite clearly that a purely traditional approach is not reflected in judicial decision making and pretending that judges either can or do operate as purely objective analysts is rather disingenuous.  Judges are, without question, influenced by a variety of political, social, and economic factors.  Some judges are appointed while others are elected.  Some receive campaign donations for reelection and some earn large sums of money on the lecture circuit or selling books.  Judges, contrary to traditionalist assumptions, are hardly insulated from the world in which they live and issue judicial opinions.  Indeed, judges might be said to be exposed to the pressures and the influences of competitive daily life in substantial ways.  Legal realism is able to accommodate these facts, and create a fairly firm legal philosophy to guide subjective human beings, and this is the final reason why this legal philosophy is superior to traditionalism.

    The theorist that best reflects the superiority of Legal Realism, and the reasons why is Jeremy Bentham.  It is ironic that he never practiced law because his influence in the field, and in the debates, resonates forcefully even today.  His brand of Legal Realism was more accurately based on his notion of the theory of utilitarianism more specifically, he believed and argued that actions must be measured and judged according to the consequences that arise from those actions.  The consequences that mattered included the creation of what Bentham called the greatest good or the greatest happiness.  This could never be achieved, in his view, by relying on sterile legal rules without integrating potential consequences into the judicial decision-making process.  Moreover, he actually advocated that judges take a more interdisciplinary approach to decision-making in order to make better informed decisions and generate better consequences indeed, as one leading scholar has noted,

The answer, for the twentieth-century functionalists, lay (as it had for Bentham long before) in other scholarly disciplines. (25) Legal scholars should look, as appropriate, to economics, philosophy, history, psychology, sociology, literature, or virtually any other field or combinations of fields of study for guidance in developing a scholarly critique of the current legal landscape or of particular parts of it.

In short, the law was hardly to be approached as an autonomous, self-governing body of knowledge if it was to contribute meaningfully to social welfare.  In Benthams view, the law itself would be rendered meaningless if a traditionalist perspective prevailed in its purest form.  Thus, for all of the reasons previously mentioned, Bentham best represents the most superior strain of Legal Realism.

    In the final analysis, legal realism is superior to traditionalism for several reasons generally speaking, it is a superior legal philosophy because it accounts for human fallibility, it treats society as an important consideration, and it maintains the integrity of the judicial branch.